P. v. Carriere

Filed 2/3/10 P. v. Carriere CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Arjuna T. Sarydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant Ricky Joseph Carriere, Jr., guilty of driving a motor vehicle while under the influence of alcohol (Veh. Code, 23152, subd. (a)) (count 3); driving a motor vehicle with a blood-alcohol content (BAC) of 0.08 percent or greater (Veh. Code, 23152, subd. (b)) (count 4); and battery on a cohabitant (Pen. Code, 243, subd. (e)(1)) (count 6).^[1] In addition, prior to trial, defendant pled guilty to count 5, driving on a revoked or suspended license. (Veh. Code,  14601.2, subd. (a).) Defendant also admitted that he had sustained prior convictions for driving a motor vehicle while under the influence of alcohol (Veh. Code, 23152, subd. (a)) and driving a motor vehicle with a BAC of 0.08 percent or greater (Veh. Code, 23152, subd. (b)) in October 2006 and March 2008. Defendant was placed on formal probation for a period of 60 months on various terms and conditions, including serving 150 days in county jail. Defendant appeals from the judgment.

I

FACTUAL BACKGROUND

Around 4:00 a.m., on August 18, 2008, Stephanie Sorg (Sorg) was asleep in her apartment when she was awakened by her boyfriend, defendant, asking her to fix him breakfast and to talk with him. Sorg refused, and an argument ensued during which defendant grabbed her on several occasions and pushed her onto the bed. Defendants yelling caused Sorgs four-year-old son to be awakened. Sorg eventually called the police. She informed the 911 operator that defendant was smothering her.

Riverside County Sheriffs Deputies Leon and Little responded to the scene. The deputies noticed that Sorg appeared upset. Sorg informed Deputy Little that defendant had placed a pillow over her head and attempted to suffocate her. Sorg was afraid that defendant would kill her. Sorg also reported that defendant flipped over the mattress she was laying on, causing her to fall and hit a wall. After she stood up, defendant grabbed her arm and threw her down on the box spring. Sorg then retreated to get her son. While she was holding her son, defendant grabbed her hair and attempted to pull her down.

At trial, Sorg denied that defendant tried to smother her or threatened to smother her. She also denied that defendant threw her onto the box spring or grabbed her hair from behind while she was carrying her son. She clarified that she had lied to the 911 operator and to Deputy Little. She claimed that she called the police because she was very upset, angry, and wanted defendant to leave.

Defendant was apprehended as he was leaving the area in his vehicle. When Deputy Leon opened the door to defendants vehicle, Deputy Leon noticed a strong odor of alcohol emanating from defendants vehicle and person. Additionally, defendants eyes were red and bloodshot, and his speech was slurred. Deputy Leon also observed several empty beer cans in the backseat of the vehicle.

Riverside County Sheriffs Deputy Van Gorder arrived at the scene and administered field sobriety tests on defendant. When the deputy first made contact with defendant, he noted that defendant had objective symptoms of being under the influence of alcohol. The deputy conducted a horizontal gaze test on defendant. Defendants response to this test indicated that he was under the influence of alcohol. Defendant refused to perform any further field sobriety tests. Defendant later submitted to a BAC test. The result of that test indicated defendant had a 0.21 percent BAC.

Defendants friend Jason Nauslar (Nauslar) testified on behalf of defendant. He stated that he and defendant and been drinking on August 17, 2008, the night before the incident; and that he had driven defendant to his and Sorgs apartment around 1:10 a.m. Nauslar claimed that defendant did not like to drive when he had been drinking.

Defendants father, a retired police officer, also testified on behalf of defendant. He asserted that he had received a call from defendant between 3:00 and 4:00 a.m. asking him to pick him up from Sorgs apartment because he had been drinking and they had been arguing. Defendants father received another call between 5:00 and 7:00 a.m. from Deputy Van Gorder, asking him if defendant had a firearm. Defendants father replied in the negative.

Defendant testified on his own behalf. Although he acknowledged that he had been drinking, and that he and Sorg had been arguing, he denied touching, pushing, or threatening Sorg, or placing a pillow over her face. He further explained that after the argument, while he was gathering his belongings in the apartment, he called his father to pick him up. He also called his friend Nauslar, but was unable to reach him. Defendant then walked out of the apartment and sat in his vehicle waiting for his father. Fifteen to 20 minutes later, as he sat inside his vehicle, he was held at gunpoint by numerous police officers. Defendant denied driving the vehicle or even starting the engine. He explained that he had refused all field sobriety tests because he had already informed the officers he was intoxicated.

II

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

We have completed our independent review of the record and find no arguable issues.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.

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^[1] The jury found defendant not guilty of committing criminal threats (Pen. Code, 422) as alleged in count 2. Prior to trial, the People dismissed count 1, charging defendant with infliction of corporal injury resulting in a traumatic condition upon a cohabitant. (Pen. Code, 273.5, subd. (a).)